What are the different types of custody arrangements?

The two issues to decide during a child custody case are where the child will live, and who will make decisions for the child. Where the child lives is a matter of physical custody.  Making decisions for the child is a matter of legal custody. 

How do I file for child custody?

You have to file a legal document asking the court to determine custody and support.  This may be a Complaint, Petition or Motion.  The actual type of the legal document you need to file depends on the type of case and whether the case is new or existing.

How do I serve the other parent?

Although some courts have relaxed their service requirements during the pandemic, it is important to show that the other party was properly served or your case will stall.  Personal service by a non-party adult is preferred.   Service by certified mail is also sufficient 

How is custody determined?                                                                         

Custody determinations are based on what is in the child's best interest.  This requires a balancing of factors Generally, those factors include the mental, physical, emotional, and social circumstances of the parents and child.   Courts strongly encourage the parents to resolve custody themselves.  Unless there is strong evidence that a child is in danger, the court will not make a decision regarding custody without giving the parents an opportunity to resolve the issue themselves. In most cases, parents will be required to participate in mediation and parenting classes.  Negotiating child custody directly with the other parent is the best way to resolve custody disputes.  Parents are in the best position to make decisions for their children because they know them best. 

What happens if the other parent and I cannot agree?
Although preferred, settlement is not always possible.  If the court must make custody decisions, they will consider:

  • Has one parent been the primary caretaker, or have the parents shared the responsibility?
  • What is the mental and physical health status of the parents and the child?
  • Will the child be in a stable home environment?
  • Will the child have an opportunity for interaction with members of their extended family or siblings?
  • Are there any school or community adjustments that will need to be made?
  • Is there any evidence of drug, alcohol, sexual or physical abuse?

Can I enforce a private custody agreement?

Yes.  Many mediators and parenting coordinators offer services to help parents work out an agreement.  A private agreement maintains privacy and flexibility and minimizes costs.  If there is a dispute, you may have to go to court.  However, the agreement will be very persuasive in resolving the dispute unless there has been a substantial and material change in circumstances since the agreement was executed.

When should joint custody appropriate?          

Joint custody can refer to many kinds of arrangements.  The arrangement can be equal time with each parent or any variation of a shared arrangement.  Joint legal custody is appropriate when the parents can communicate well enough to make decisions together for their child.  Joint physical custody is appropriate when both parties can maintain the child's ties to community, family and school in a way that promotes stability and wellness.

How can I get full custody of my child?

First, consider whether this is in the child' best interest.  Then, consider if it is possible to work with the child's other parent to avoid further legal disputes through cooperation.  If the other parent is committed and loving, it is unlikely that a court will change the current custody arrangement.  Courts favor the status quo because it avoids disrupting the child's life.   If you truly believe that sole custody is necessary, discuss the facts of your case with an attorney experienced in family law.

What if I believe the other parent is unfit to have custody of our children?     

Substance abuse, physical abuse, mental illness, or neglect are examples of unfit behavior.  If you believe that your child is in imminent danger, you should call the authorities.  Otherwise, you should consult with an experienced attorney.  If you want to have the other parent declared unfit by a court, expect a difficult and lengthy process. The burden of proof rests on you to prove that the other parent is unsuitable.  Typically, your testimony alone will not be enough.  You will need irrefutable evidence of unfitness.  Disagreements in parenting styles are not enough to block custody.  Evidence in a disputed custody case might include photographs, medical files, criminal records, or investigation reports.  If you are seeking to prove a parent is unfit, it is highly advisable to consult with an attorney before proceeding.

Does an unmarried parent need to file for custody?                                    

When paternity is not an issue and there is no court order, both parents share full custody of a child.  Some unmarried parents can co-parent without any problems.  However, an unmarried parent may consider obtaining a custody order if they anticipate disagreements, relocation, or kidnapping.

The other parent is denying me access to my child, what should I do?

If there is an existing Court Order that grants you access, the other parent may be contempt.  If there is no Court Order, you may file a lawsuit after attempting to resolve the disagreement through communication and possibly mediation. 

Do I Need to Allow Visitation If I Have Full Custody?

You should follow the Court Order. If a Court determined that the other parent should not have visitation, you should not allow visitation.   If the Court Order granted the other parent with ‘reasonable' visitation, you should allow the other parent access at sensible times for fair amounts of time.  

Can I move out of state with my child?

Relocating with a child without proper consent can lead to kidnapping charges. If the other party opposes and has strong ties to the child, you need their consent or a court order.  If you are considering moving more than 20-30 miles away, you should consult an attorney. 

Can my child tell the judge who they want to live with?                              

Courts are reluctant to involve children in custody dispute and parents should be reluctant as well.  No child should be forced to choose a parent.  In some case, the court will hear from 14 years old and older.  However, the court is not obligated to follow the wishes of the child if they believe that another arrangement is in their best interests.   If appropriate and necessary, the court may appoint guardian ad litem to represent the best interests of the child. 


What is a guardian ad litem

A Guardian ad litem (or GAL, for short) is a person appointed by the court to act as an independent investigator. Their investigation involves interviewing the child, parents, family members, friends, teachers, counselors, and social workers. Following the investigation, the GAL makes recommendations to the court about what is in the child's best interest. GALs are usually lawyers.

What is a parent coordinator?

Parent Coordinators are trained professionals who provide guidance to parties who are interested in pursuing joint legal custody for a child. They help parents work out a schedule, communication issues and dispute prevention. They offer dispute-resolution options for high and low conflict cases.  Like GALs, they may speak to the children, when the children are old enough to express their wishes. Parent coordinators are usually therapists or social workers.  

How does domestic violence affect child custody?                                            

The courts are reluctant to award child custody to any parent who has committed domestic violence on the child or other members of the family. Therefore, they will carefully investigate any allegations of domestic violence before making a child custody determination.  Unfortunately, some parents use domestic violence remedies to obtain an advantage in a custody determination. Parents who've been wrongly accused should seek legal representation and cooperate with all aspects of the investigation.

If a parent loses custody, can it be regained?                                                  

Yes, a parent can regain custody even after previously losing custody rights. However, this is not easy or fast.  In most cases, custody and access will be regained gradually.   Remember, custody is about what is best for the child, not rewarding a parent.  There must be compelling evidence that it is in the best interests of the children for custody to be restored.

How are custody cases different for children with special needs?                     

The courts will consider a child's special needs, particularly where medical or developmental issues make it difficult for parents to share custody. The courts will still want to see that the parents are willing to cooperate and ensure that the child can enjoy an ongoing relationship with both parents.

Are the court biased against fathers?                                                                

The courts may not discriminate against fathers. One reason for the discrepancy in favorable custody outcomes for mothers is because mothers are usually the primary caregivers, especially of very young children.  Courts favor the status quo to minimize disruption in the child's life.  So, if parents are unmarried, this can lead to an appearance of favoring the mother.  However, most courts recognize the importance of having both parents actively involved in the child's life.  If you are the non-custodial parent, you should consult with an attorney to determine your options.

Do I need to hire a lawyer?

Maybe. A custody agreement can be worked out directly between the parents, or with the help of a third-party mediator or arbitrator. Direct negotiations can work out well if the relationship between separating parents is reasonably amicable, and their goals are aligned.

Parents that prefer to not hire a lawyer for representation may benefit from a full consultation or several consultations throughout the legal process. Any custody agreement you and your co-parent work out will have to be approved by a judge to become a court order.  

When should I consult with a lawyer?You may want to consult with a lawyer if:

  • The other party has a lawyer.
  • The parents live in different states.
  • One parent is remarrying or relocating.
  • There are allegations of abuse or neglect.

One parent wishes to file for sole custody against the wishes of the other.